Though there is also considerable confusion about just what the law would allow the government to do. The ACLU says that “simply requesting information about such boycotts” could expose a person to penalties. But Jewish Voice for Peace warns its followers not to let the bill chill their advocacy, because it “does not make it illegal for individual consumers to boycott Israeli or settlement products.”

Here are some of the responses. First, here is the full ACLU letter to Senators opposing the legislation.

We write today in opposition to S. 720, also known as the Israel Anti-Boycott Act. We understand that proponents of the bill are seeking additional co-sponsors. We urge you to refrain from co-sponsoring the legislation because it would punish individuals for no reason other than their political beliefs. We also urge you to oppose the bill, whether in committee or on the floor, unless it has undergone significant revision to resolve its constitutional infirmities.

The bill seeks to expand the Export Administration Act of 1979 and the Export-Import Bank Act of 1945 which, among other things, prohibit U.S. persons from complying with a foreign government’s request to boycott a country friendly to the U.S. The bill would amend those laws to bar U.S. persons from supporting boycotts against Israel, including its settlements in the Palestinian Occupied Territories, conducted by international governmental organizations, such as the United Nations and the European Union. It would also broaden the law to include penalties for simply requesting information about such boycotts.

Violations would be subject to a minimum civil penalty of $250,000 and a maximum criminal penalty of $ 1 million and 20 years in prison. We take no position for or against the effort to boycott Israel or any foreign country, for that matter. However, we do assert that the government cannot, consistent with the First Amendment, punish U.S. persons based solely on their expressed political beliefs.

This bill would impose civil and criminal punishment on individuals solely because of their political beliefs about Israel and its policies. There are millions of businesses and individuals who do no business with Israel, or with companies doing business there, for a number of reasons. Some, like those who would face serious financial penalties and jail time under the bill, actively avoid purchasing goods or services from companies that do business in Israel and the Palestinian Occupied Territories because of a political viewpoint opposed to Israeli policy.

Others may refrain from Israeli-related business based on political beliefs, but choose not to public ly announce their reasoning. Still others do no business with companies in Israel for purely pragmatic reasons. Under the bill, however, only a person whose lack of business ties to Israel is politically motivated would be subject to fines and imprisonment– even though there are many others who engage in the very same behavior. In short, the bill would punish businesses and individuals based solely on their point of view. Such a penalty is in direct violation of the First Amendment.

The ACLU has long supported laws prohibiting discrimination, but this bill cannot fairly be characterized as an anti-discrimination measure, as some would argue. For example, the Civil Rights Act of 1964 already prevents businesses from discriminating against customers based on
race, color, religion, and national origin. This bill, on the other hand, aims to punish people who support international boycotts that are meant to protest Israeli government policies, while leaving those who agree with Israeli government policies free from the threat of sanctions for engaging
in the exact same behavior. Whatever their merits, such boycotts rightly enjoy First Amendment protection.

By penalizing those who support international boycotts of Israel, S.720 seeks only to punish the exercise of constitutional rights. Accordingly, we urge you not to co-sponsor this bill and to oppose it when it comes before you either in Committee or on the floor. Please contact advisor on First Amendment issues Michael Macleod-Ball at 202.253.7589 if you have questions or comments about ACLU’s opposition to this legislation.

Sincerely,

Faiz Shakir

National Political Director

Democracy Now covered the legislation, and interviewed reporter Ryan Grim, who scooped the criminal element of the legislation at the Intercept. Grim notes the role of the Israel lobby group AIPAC and says that Democrats who supported the Iran deal are trying to compensate by supporting this bill! Exactly what Hillary Clinton did two years ago, supported the Iran deal but came out against BDS.

Grim: [A]s you said, it’s a huge priority of AIPAC, according to lawmakers I’ve spoken to, that this has been something that they’ve been working on hard over the last several months. It was introduced in March and has bipartisan support. On the Democratic side, one of the things that I picked up is that Democrats seem to—they took a lot of heat back at home when they—for the Democrats who did end up supporting the Iran deal, back under President Obama. And so, this, to a lot of them, seemed like a bit of a small wake-up call. I think the—I mean, a makeup call.

The reporter says the congresspeople didn’t understand the criminal component:

You know, the way that it was presented in the lobbying effort didn’t talk about the criminal penalties that were associated with violating this statute. And so, when our story came out and when the ACLU letter circulated this week, a lot of the people who had sponsored it were a bit surprised that they had actually backed something like this. They thought it was a rather simple kind of extension of a policy that had been in place for decades, merely extending it to the EU and the U.N. But, in fact, it comes with these—according to the ACLU, these draconian penalties. And so, I think you’re seeing a lot of them revisit it at this moment, now that there’s so much more public attention on it…

Grim explains that the criminal penalties are not explicit in the actual bill:

[T]he way that it’s written, you know, if you read the bill itself, the penalties aren’t mentioned. You have to reference an underlying statute that it amends, and then, once you get to the underlying statute, then you see the million-dollar fine and the 20-year prison sentence, which the ACLU says, because you’ve brought that underlying statute into play, that that criminal statute could be brought in by a judge or a prosecutor.

Rabbi Joseph Berman of Jewish Voice for Peace told Amy Goodman that AIPAC is not representative of American Jews:

[T]hey don’t speak for the Jewish community. Sometimes they might claim to, but they don’t. The Jewish community, Jews in the United States are incredibly diverse, and in many ways, and especially when it comes to relationships to and views on Israel, on Israel-Palestine. And so, they’re not representative of American Jews, even though they might have a lot of influence. And at the same time, they are able to move this forward. I think that it’s incumbent on us to have to provide a counterweight. We need to change the calculus for members of Congress so that they’re not going to support legislation like this

Here is an excerpt of J Street’s letter opposing the legislation, written to Congresspeople by Dylan Williams. Its greatest concern is that the bill makes no distinction between boycott of settlement products and BDS (J Street opposes the latter and takes no position on the former):

As you know, J Street has serious concerns with the “Israel Anti-Boycott Act” (S.720/H.R.1697) as written, which would undermine decades of US policy toward the Israeli-Palestinian conflict, bolster the settlement enterprise and harm the prospects for a two-state solution.

Beyond undermining longstanding US policy toward the settlements, S.720/H.R.1697’s massive expansion in the definition of boycotts against Israel in the context of the existing US
anti-boycott statute’s declaration of policy (50 USC §4602) creates a risk that individuals complying with or merely “furthering” or “supporting” a foreign country’s or international governmental organization’s boycott targeted exclusively at the settlements could be prosecuted for violating US anti-boycott laws (50 USC §4607) – a criminal offense. The penalties associated with these offenses are serious, potentially including substantial fines and prison time of up to 10 years (50 USC §4610).

While it would ultimately be up to the courts to decide whether someone was supporting a particular boycott by a foreign country or international governmental organization in violation of the modified US anti-boycott statute, this bill could give Attorney General Jeff Sessions the power to prosecute any American who chooses not to buy settlement products for a felony offense. That kind of authority should not be given to any administration, let alone one that has engaged in extreme rhetoric against political opponents, including threats to “lock [them] up.”

Here is part of the Jewish Voice for Peace statement on the legislation. “Take Action to Stop Unconstitutional Attack on Freedom to Boycott.” The statement urges supporters of boycott not to panic, they are not about to be jailed. It would seem to contradict the J Street analysis that the AG would have “the power to prosecute any American who chooses not to buy settlement products for a felony offense.”

What does the bill actually do?

The Israel Anti-Boycott Act (S. 720/ H.R. 1697) is the latest, and most extreme, of a series of unconstitutional anti-boycott legislation at both the federal and state level. The law aim to quell the movement for Palestinian rights by penalizing companies and individuals engaged in commerce for using the nonviolent tactics of boycott, divestment and sanctions to hold Israel accountable for violations of Palestinian rights. First introduced in March, this bill seeks to amend two laws – the Export Administration Act of 1979 and the Export-Import Bank Act of 1945 – to penalize companies that participate in boycotts, and to preempt efforts by international governmental organizations from complying with international law and calling for an end to trade with Israel’s settlements or companies that operate in the settlements. Of course, as the ACLU letter points out, millions of people and businesses do not do business with Israel for any number of reasons. This law would only punish those whose lack of business ties to Israel or the illegal settlements is based on their political beliefs — which is why it is discriminatory in addition to being a threat to free speech.

The bill opposes the creation of a database of Israeli settlement companies by the UN Human Rights Council and any efforts to boycott those companies’ products. The bill categorizes violations as felonies, and the potential penalties are steep: a minimum $250,000 civil penalty and a maximum criminal penalty of $1 million and 20 years imprisonment.

What doesn’t the bill do?

It does not make it illegal to support the Palestinian-led call for boycott, divestment and sanctions. It does not make it illegal for individual consumers to boycott Israeli or settlement products. While this legislation is horrible, it is important not to exaggerate the potential impacts of the legislation and add to the chilling effect against advocacy for Palestinian human rights.

This Bill seems to ignore the fact that the West Bank including East Jerusalem is Occupied Palestinian Territory [OPT] and the settlements in them are classed as Grave war crimes in breach of Article 49 paragraph 6 of the Geneva Conventions. A few years ago the UK Foreign and Commonwealth Office in conjunction with the Department of Trade published a paper on Overseas Business risks- The Occupied Palestinian Territories, here is part of the paper….

“There are therefore clear risks related to economic and financial activities in the settlements, and we do not encourage or offer support to such activity. Financial transactions, investments, purchases, procurements as well as other economic activities (including in services like tourism) in Israeli settlements or benefiting Israeli settlements, entail legal and economic risks stemming from the fact that the Israeli settlements, according to international law, are built on occupied land and are not recognised as a legitimate part of Israel’s territory. This may result in disputed titles to the land, water, mineral or other natural resources which might be the subject of purchase or investment. EU citizens and businesses should also be aware of the potential reputational implications of getting involved in economic and financial activities in settlements, as well as possible abuses of the rights of individuals. Those contemplating any economic or financial involvement in settlements should seek appropriate legal advice”.

This is very sound advice, any business investing hundreds of thousands of pounds in companies like Ahava or Golan Heights Winery could easily lose that money, since if a settlement was arrived at in the next few years, both the the Syrian and Palestinian governments could seize all settlement factories and claim reparations for the illegal use of natural resources and propery without compensation. Most countries occupied by Germany during WW2 declared that any trade or transactions with the occupier was null and void under International law, and would not be recognized. A PLO Negotiating committee paper several years ago also warned of such trade and its consequences. All good reasons why consumers should not invest in settlement products. Maybe US citizens should ask their representatives if they will guarantee out of their own pockets any reparations having to be made to the returning legitimate governments?

This proposed Bill which makes it illegal to Boycott Israeli businesses located in Occupied Palestinian Territory has not taken into consideration International Law and the limits of the occupying Authority whose only mandate is to ‘administer’ the area, under the rules of usufruct he is not, for instance, allowed to sell immovable property, certainly not natural resources like water or minerals [Ahava].
The Israeli occupying authority under the Military Commander must act only within the Occupied Palestinian Territories [OPT] according to the narrow parameters of customary International Law. Under The Hague regulations 1907 and the Geneva Conventions 1949, the Occupant is allowed to sell, [under the rules of usufruct the ‘fruit’ of the property not the ‘capital’ i.e, he can sell the apple but not the tree, or he can rent a building, but not sell it]. He can (using local labour) administer the area for two reasons only:
(1) Military needs and/or
(2) To benefit the local protected population.

Not the settlers obviously, their illegal presence does not cover the legal definition of protected persons under International Law as defined by Geneva Convention Article 4 (below).
Geneva Conventions 1949. Article 4
Persons protected by the convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals [cited fourth Geneva Conventions 1949. Article 4]
The following agreement is what the US administration signed up to and is still in place..

In July 1943 an International conference was held in London, its mandate was to upgrade the Hague regulations since they were not specific enough on property transfers, particularly because of the Nazi depredations in much of occupied Europe, these resolutions were put together by the leading jurists of their time and represent the latest and definitive word on the transfer of property rights and interests both within and outside occupied territory The USA, USSR, China and the United Kingdom and Dominions amongst others adopted them, here are the first four resolutions:-

(1) The rules governing the validity in third countries of the acts of belligerent occupants and of transfers of, or dealings with, property, rights and interests of any description whatsoever derived from such acts, are rules of international law the non observation of which entails international responsibility.
Note: In courts of third States cases may be decided according to a variety of legal considerations, but the result must be in harmony with the rules of international law, the main contents of which are set out below. The Conference has not discussed the conditions under which a third State that does not give effect to the said rules is liable to pay damages to the injured party and/or his State.
(2) The occupant does not succeed, even provisionally, to the status or rights of the sovereign whom he displaces. The occupant has at most, under international law, only limited rights or jurisdiction and administration; acts in excess of these limited rights are null and void in law and are not entitled to legal recognition in any country.
(3) The rights of the occupant do not include any right to dispose of property, rights or interests for purposes other than the maintenance of public order and safety in the occupied territory. In particular, the occupant is not, in international law, vested with any power to transfer a title which will be valid outside that territory to any property, rights or interests which he purports to acquire or create or dispose of; this applies whether such property, rights or interests are those of the State or of private persons or bodies. This status of the occupant is not changed by the fact that the annexes by unilateral action the territory occupied by him.
(4) The civil administration established in a country subject to belligerent occupation has no status in international law. Any rule of international law establishing the invalidity of transfers of, or dealings with, property, rights and interests effected by the occupant applies also to similar transfers and dealings carried out by any associate or agent of the occupant acting for him or in his interest.

The issue of exploitation of natural resources of occupied territory arose following the occupation of Iraq by the forces of the USA and the UK, the two countries made a commitment to the UN security council that all the receipts from the Iraqi oil sector would be used for the Iraqi people, and would be kept in a separate fund from which only a recognised representative of the Iraqi people could draw (see UN resolution 1483 May 22nd 2003). The International court of justice at the Hague ruled that it was absolutely forbidden to utilise the natural resources of the occupied territory for the need of the occupying country and that by doing so breached article 43 (republic of Congo V Uganda. 19th December 2005).
Of course we are aware of what the United States thinks of International Law so I will not hold my breath waiting for them to adhere to the above.

For information. The 1943 Resolution above is quoted in full in Von Glahn, “The occupation of enemy territory” [1957] pp 194-195. It was used in the “Quarries case” a few years ago in the Israeli High Court, that case was brought by Yesh Din [an Israeli human rights group] against the Military Commander of the IDF in control of the occupied territories.

Basically the author claims (like the Senators pushing the bill) that
1. it simply extends currently valid laws that go back to the 1970s to UN or EU sponsored boycotts of Israel (of which there are none at the moment).
2. that although the underlying law is directed at “U.S. persons”, this is in the context of Arab country boycotts of companies doing business in Israel, and is never used against private individuals (i.e. non-corporate persons) – according to information on the government watchdog agency that monitors compliance.

Of course, It is unclear whether the watchdog agency orthe courts, particularly under Israel lobby and right-wing pressure could, interpret the legislations reference to “U.S. persons” to include individuals as well as organisations that promote the boycott of Israel or its settlements.

I’m sure AIPAC and other knee jerk defenders of Israel would make that claim, but the article I linked to does not. Personally, I hope that the ACLU’s analysis is correct, but it would be interesting to know what other progressive legal experts make of the Cardin/Portman/Daily Beast arguments.

U.S. Senators Ben Cardin (D-Md.) and Rob Portman (R-Ohio) sent the following letter to the American Civil Liberties Union in response to their concerns about S. 720, The Israel Anti-Boycott Act, which amends a 40-year-old law to include international governmental organizations such as United Nations agencies or the European Union.

We write in response to your letter regarding the Israel Anti-Boycott Act. Our offices have a long history of defending the civil rights of all Americans, including their right to constitutionally-protected free speech. Because of that history, and because we would not support legislation that infringed on those rights, we welcome the opportunity to correct some fundamental misunderstandings about the bill.

We cannot state this strongly enough: the bill does not “punish U.S. persons based solely on their expressed political beliefs.” Nothing in the bill restricts constitutionally-protected free speech or limits criticism of Israel or its policies. Instead, it is narrowly targeted at commercial activity and is based on current law that has been constitutionally upheld.

In particular, as you know, Congress has the authority to put limits on international commercial conduct. Pursuant to this authority, Congress amended the Export Administration Act (EAA) in 1977 to prohibit U.S. persons from complying with unauthorized foreign boycotts — specifically, the Arab League Boycott of Israel — and authorized penalties against violations. Courts have consistently upheld the Arab League Boycott provisions of the EAA.

The bill makes one small but important change in current law. The EAA currently prohibits U.S. persons from complying with unsanctioned foreign boycotts imposed by foreign countries. The new legislation would extend this prohibition to unsanctioned foreign boycotts imposed by international governmental organizations such as United Nations agencies or the European Union. For example, if the United Nations Human Rights Council requests information from an American company about its business dealings in Israel or Israeli-controlled territories as part of an effort to compile a blacklist of companies doing business with Israel, the bill would prohibit the company from responding.

Because of the breadth of concerns raised in your letter, it may also be helpful to note conduct that the bill does not address.

The bill does not prevent U.S. companies and individuals from expressing their points of view, speaking in favor of boycott, divestment, or sanctions (BDS) activities, engaging in boycott activity of their own accord, or being critical of Israel. Individuals who “actively avoid purchasing goods and services” because of their own political viewpoint would not be subject to the bill. Similarly, the bill does not regulate civil society organizations who are critical of Israeli policies or prevent them from speaking in favor of BDS. The legislation does not encourage or compel persons to do business with Israel, nor does it punish individuals or companies from refusing to do business with Israel based on their own political beliefs, for “purely pragmatic reasons,” or for no reason stated at all. Any suggestion that this bill creates potential criminal or civil liability for these actions is false.

We also note that you referenced the Export-Import Bank Act in your letter, and implied that the Export-Import Bank Act penalizes U.S. persons for complying with unsanctioned foreign boycotts. This is not correct. The Export-Import Bank changes in our bill apply to the charter of the Export-Import Bank and the policy considerations the Bank must take into account when evaluating certain financial or credit applications.

We believe we have — and have long held — similar goals and beliefs when it comes to First Amendment protections. Consistent with those goals and beliefs, this bill does not limit the rights of American citizens or organizations to express their views on Israeli or American foreign policy. Nor does it introduce any core legal principles that have not already been upheld in court. We welcome a healthy dialogue with you and any other interested parties about the purpose and importance of our legislation, and sincerely hope that this letter has addressed your concerns.

I don’t think that any prosecution brought under this bill would stand up to a First Amendment challenge.
I also think it may force Zionists to either back away from their unconditional support of Israel, or admit that that support is incompatible with democracy and the US constitution.

The grotesque effrontery, of those wishing to make it a criminal offense to seek to pressure Israel to end the occupation of the West Bank, is literally breathtaking. Suppressing free speech is becoming a core programme of fanatical Israel “supporters”.

“Rep. Joe Kennedy is among the first of the bill’s co-sponsors to say he is reviewing his position on the draft law, which critics say would criminalize support for boycotts of Israel or the settlements.”

EXCERPT:

“WASHINGTON — Democrats on Capitol Hill are re-examining their support for a bipartisan bill intended to fight boycotts against Israel and the settlements after the American Civil Liberties Union warned U.S. senators last week that it endangers free speech in the United States and could lead to citizens’ going to prison simply for expressing a political opinion.

“Two Democratic staffers who are involved in discussions over the legislation told Haaretz that over a dozen Democrats in both houses of Congress have already began to reconsider their positions in light of the letter the ACLU sent to U.S. senators. One of the first members of the House of Representatives to publicly announce such a review is Rep. Joe Kennedy III, a Democrat representing Massachusetts. Kennedy, a grandson of the late Sen. Robert F. Kennedy, is considered a rising political star in the Democratic Party and is one of 240 co-sponsors of the bill in the House.

“The controversial Israel Anti-Boycott Act was proposed in the both the Senate and the House in March, but it only garnered national attention after the ACLU issued the letter last week expressing strong opposition to it. The leading civil rights organization warned that under the bill’s current language, U.S. citizens could face fines of hundreds of thousands of dollars, and potentially even go to prison for up to 20 years, simply for expressing support for boycotts of Israel and the settlements.”

“Thank you for contacting me regarding the Israel Anti-Boycott Act (S. 720). I appreciate hearing from you on this important issue.

I understand there is confusion over what this bill actually does. First, there is nothing in the Israel Anti-Boycott Act (S. 720) or current law that restricts Constitutionally-protected First Amendment rights or limits criticism of Israel or its policies. Individuals are free to speak in favor of boycott, divestment or sanctions (BDS) activities or to voluntarily engage in boycott activities of their own will.

No U.S. law forces anyone to do business with Israel or penalizes them for their personal decision to avoid doing business with Israel – this bill would not change that. Individuals and organizations can choose to avoid doing business with Israel based on their own personal or political beliefs. Any allegation that this bill creates potential criminal or civil liability for individuals or organizations refusing to do business with Israel for these reasons is incorrect.

To be clear, this bill does not limit the rights of American citizens or organizations to express their views on Israeli or American foreign policy in any form. I am a strong supporter of free speech rights and would not be supporting a bill that restricts those rights.

In 1948, the Arab League established a formal boycott against Israel and companies and entities that do business with Israel. In 1977, the U.S. Congress passed legislation that was enacted into law making it illegal to comply with the Arab League Boycott. Under current law that has been on the books for 40 years, it is unlawful for U.S. companies to knowingly comply with unsanctioned foreign boycotts imposed by foreign countries.

The Israel Anti-Boycott Act (S. 720) would apply to other unsanctioned foreign boycotts imposed by international organizations such as the United Nations or the European Union.

Thank you again for contacting me to share your thoughts on this matter. Please do not hesitate to contact me in the future if I can be of further assistance.

“In 1948, the Arab League established a formal boycott against Israel…/… it is unlawful for U.S. companies to knowingly comply with unsanctioned foreign boycotts imposed by foreign countries.”

Very clever. “to comply knowingly”? Last I heard, ignorance of the law is no excuse for a business, and companies try to be pro-active in anticipating the legal consequences of their actions, especially in international business.

“Others may refrain from Israeli-related business based on political beliefs, but choose not to public ly announce their reasoning. Still others do no business with companies in Israel for purely pragmatic reasons. Under the bill, however, only a person whose lack of business ties to Israel is politically motivated would be subject to fines and imprisonment– even though there are many others who engage in the very same behavior. In short, the bill would punish businesses and individuals based solely on their point of view. Such a penalty is in direct violation of the First Amendment.”

This objection would be more meaningful if laws themselves meant something to the US. But, as Howard Zinn explained in his dynamite “A People’s History Of The United States,” seven years after the First Amendment they turned around a passed the Sedition Act, in effect violating the First Amendment. If they don’t take their own rules seriously – which is to say they they take them seriously but they don’t believe in a rule of law on principle – then why should we? Then again, I believe in honesty. Almost no one does.

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